Chapter 2 - Eligibility Requirements

An alien may be eligible to work in the United States as a North American Free Trade Agreement (NAFTA/USMCA) professional in the TN nonimmigrant classification,^[1] if he or she meets the following conditions:^[2]

• The alien is a citizen of Canada or Mexico;
• The alien’s profession is included in NAFTA/USMCA;^[3]
• The position in which the alien will be working in the United States requires a NAFTA/USMCA professional;
• The alien has the qualifications of the profession (that is, he or she meets the specific requirements, education, and experience, as applicable); and
• The alien will work in a prearranged full-time or part-time job for a U.S. employer or entity.^[4] Self-employment does not qualify under NAFTA/USMCA.

A. Definitions

The table below provides terms and definitions that relate to eligibility as a TN professional.^[5]

B. Self-Employment

1. General Considerations

Canadian or Mexican citizens seeking to engage in self-employment in trade or investment activities in the United States are not eligible for the TN nonimmigrant classification and instead must seek classification as a Treaty Trader or Treaty Investor (E nonimmigrant).^[6]

NAFTA Chapter 16, Annex 1603, Section B, Traders and Investors, establishes the appropriate category of temporary entry for a Canadian or Mexican citizen seeking to develop and direct investment operations in another party country. Self-employment conflicts with the intent of the NAFTA Implementation Act and its accompanying Statement of Administrative Action (SAA), which states: “Section D of Annex 1603 does not authorize a professional to establish a business or practice in the U.S. in which the professional will be self-employed.”^[7]

Although the regulations governing the previous United States-Canada Free-Trade Agreement (CFTA) Implementation Act did not address self-employment, the bar on establishing a business or practice in which the professional will be self-employed is consistent with the intent of the United States and Canada in entering into the CFTA. Since entry into NAFTA was not intended to substantively change the treatment of professionals, this explicit bar only clarifies existing law.^[8]

A Canadian or Mexican citizen who is self-employed outside the United States may seek admission to the United States in accordance with a prearranged agreement with an enterprise owned by another person or entity located in the United States. A TN applicant may not do so to render prearranged services for a U.S. corporation or entity for which the alien is the sole or controlling shareholder or owner or over which he or she holds de facto control.^[9]

Relevant factors for determining whether the alien is self-employed include, but are not limited to:

• Whether the U.S. enterprise is a separate legal entity from the alien;
• Whether the alien has substantial control over the enterprise for which he or she will work in the United States; and
• Whether evidence indicates the U.S. enterprise was established to facilitate the alien’s self-employment in the United States.

2. Separate Legal Entity (Substantively Separate)

An alien is ineligible for classification as a TN professional if the enterprise in the United States offering a contract or employment is a sole proprietorship he or she will operate. Even if the receiving enterprise is legally distinct from the alien, such as a corporation having a separate legal existence, entry as a TN professional must be refused if the receiving enterprise is substantially controlled by that alien.^[10]

3. Substantial Control of Enterprise

Whether an alien substantially controls the U.S. enterprise depends on the specific facts of each case. The relevant factors in determining what constitutes substantial control include, but are not limited to:

• Whether the alien has established the receiving enterprise;
• Whether the alien has sole or primary control of the U.S. enterprise (regardless of the alien’s actual percentage of share ownership);
• Whether the alien is the sole or primary owner of the enterprise; and
• Whether the alien is the sole or primary recipient of the enterprise’s income.

4. Established to Facilitate Self-Employment

An alien is ineligible for classification as a TN professional if evidence indicates that the enterprise he or she will work for in the United States was established to facilitate self-employment. The following activities may indicate such an intent:

• Incorporation of an enterprise in which the alien will be self-employed; or
• Initiation of communications (for example, by direct mail or by advertising) for the purpose of obtaining employment or entering into contracts for an enterprise in which the alien will be self-employed the United States.

On the other hand, the following activities do not constitute the establishment of a business in which the alien will be self-employed in the United States:

• Responding to unsolicited inquiries about service(s) that he or she may be able to perform; or
• Establishing business premises from which to deliver prearranged services to clients.

C. Prearranged Professional Services

To obtain TN classification, an alien must be seeking admission to provide prearranged professional services to an individual person or an enterprise.^[11] If the business activities are provided to an enterprise, the enterprise must be substantively separate from the alien seeking entry.

To constitute prearranged professional services, a formal arrangement must be in place to provide professional services to an individual person or an enterprise in the United States. The formal arrangement may be through an employee-employer relationship or through a signed contract between the alien or the alien’s employer and a person or enterprise in the United States.

D. Professional Activities in the United States

The enterprise in the United States for which the business activities are to be performed may take any legal form.^[12] The enterprise can be “any entity constituted or organized under applicable law, whether or not for profit, and whether privately-owned or government-owned, including any corporation, trust partnership, sole proprietorship, joint venture or other association.”^[13]

Footnotes

[^ 1] Even though the United States-Mexico-Canada-Agreement (USMCA) replaces NAFTA, the USMCA retains all substantive elements of the former NAFTA, and the United States continues to use the TN designation for NAFTA/USMCA professionals.

[^ 2] See 8 CFR 214.6(a)-(c).

[^ 3] See NAFTA Chapter 16, Annex 1603, Section D, Professionals. See USMCA, Chapter 16, Appendix 2 (PDF) (found at page 1322 of the USMCA).

[^ 4] See the U.S. Department of State’s Visas for Canadian and Mexican USMCA Professional Workers webpage.

[^ 5] See 8 CFR 214.6(b).

[^ 6] See INA 101(a)(15)(E). For information on seeking E nonimmigrant classification, see the Temporary (Nonimmigrant) Workers webpage.

[^ 7] See the SAA (PDF) at 179.

[^ 8] See 8 CFR 214.6(b).

[^ 9] See 8 CFR 214.6(b) (definition of engage in activities at a professional level).

[^ 10] See 8 CFR 214.6(b) (definition of engage in activities at a professional level).

[^ 11] See 8 CFR 214.6(b) (definition of engage in business activities at a professional level).

[^ 12] See NAFTA Chapter 2, Article 201, Definitions of General Application.

[^ 13] See NAFTA Chapter 2, Article 201, Definitions of General Application.